Werblo v. Board of School Trustees of Hamilton Heights School Corp., 29A02-8704-CV-167

Decision Date16 February 1988
Docket NumberNo. 29A02-8704-CV-167,29A02-8704-CV-167
Citation519 N.E.2d 185
Parties44 Ed. Law Rep. 1311 Diane WERBLO, Plaintiff-Appellant, v. BOARD OF SCHOOL TRUSTEES OF the HAMILTON HEIGHTS SCHOOL CORPORATION, and Sylvia Kay Hartley, V. Ray Mosbaugh, Lawrence C. Beck, Keith Schulenburg, and Ronald E. McGill, individually and in their capacity as members of the Board of School Trustees of Hamilton Heights School Corporation, Defendants-Appellees.
CourtIndiana Appellate Court

Richard J. Darko, Debora J. Waltz, Lowe Gray Steele & Hoffman, Indianapolis, for plaintiff-appellant.

James W. Riley, Jr., Donald S. Smith, Callahan & Riley, Indianapolis, Jack G. Hittle, Church, Roberts & Beerbower, Noblesville, for defendants-appellees.

RATLIFF, Chief Judge.

STATEMENT OF THE CASE

Diane P. Werblo appeals from the Hamilton Superior Court's dismissal of her claim brought under 42 U.S.C. Sec. 1983, and affirmance of the Board of School Trustees of Hamilton Heights School Corporation's (School Board) decision to dismiss her for insubordination. We affirm in part and reverse in part.

FACTS

Diane P. Werblo taught English and Latin at Hamilton Heights High School during the 1983-84 school year as a tenured teacher. As part of the English course Werblo led her class through a movie version of "Romeo and Juliet" in preparation for a test on the Shakespearean play. The students were scheduled to view the final third ( 1/3) of the play on April 11, 1984. However, a convocation entitled "Sportsworld" which contained religious materials was scheduled on the same day. On April 10, 1984, Werblo discussed the conflicting schedule with Eugene Pitts, the school principal, and sought permission for her class to view the final third ( 1/3) of the play, rather than attend the convocation. A resolution to the conflict was not reached at that time. Werblo again discussed the conflict with Pitts on April 11, 1984, and further explained that the video was on loan and could not be secured for another time. Pitts considered the situation and then directed Werblo to attend the convocation with her students. Subsequently, Pitts made an announcement on the school's public address system. The announcement discussed the convocation, noted the speaker's career as a football player, and advised that the convocation would include religious content. The announcement also indicated that anyone who did not wish to attend the convocation for religious or "any other reasons" was to report to the principal's office or Pitts in the hallway.

Werblo interpreted this later announcement as a way for her class to view the movie, rather than attend the convocation. Accordingly, Werblo gave her students the individual option of attending the convocation or viewing the movie. Werblo and sixteen (16) of thirty (30) students chose to view the movie. In accordance with the announcement Werblo and the sixteen (16) students reported to the office and objected to attending the convocation. Werblo objected on religious grounds. Thereafter, Werblo and the students went to the library and viewed the movie.

On April 18, 1984, the School Board notified Werblo that a meeting would be held on May 21, 1984, to consider the cancellation of her indefinite teacher contract. The notice provided also that Werblo had a right to request a hearing. On April 25, 1984, Werblo requested a written statement of the reasons for the consideration of cancellation and requested a hearing. On April 30, 1984, the School Board notified Werblo that the consideration of cancellation was based upon, "alleged insubordination At the hearing, the School Board accepted evidence, and heard testimony from witnesses called by both Pitts and Werblo. A teacher's union representative assisted and acted on behalf of Werblo. After the hearing, School Superintendent Dr. Bob A. Carnal recommended termination of Werblo's contract. On May 21, 1984, the School Board met again, issued findings of fact and conclusions of law and determined that Werblo's actions constituted a willful refusal to obey a reasonable rule or direction from the principal which amounted to insubordination. Based upon this determination the School Board cancelled Werblo's contract, effective May 22, 1984.

                by [Werblo] with regard to the required attendance of [Werblo's] class at a school convocation to have been held on April 11, 1984, and these actions by [her] with regard to that incident [were] being considered a willful refusal to obey reasonable rules of the School."   Record at 255.  The School Board also notified Werblo that the hearing would be held on May 14, 1984, at 7:30 P.M. in the School Board room
                

On October 23, 1984, Werblo filed a complaint against the School Board and its individual members in three counts. Count I of Werblo's complaint alleged a violation of her constitutional and civil rights and was brought under 42 U.S.C. Sec. 1983. In addition to reinstatement, back pay, and damages, Count I also sought attorney's fees under 42 U.S.C. Sec. 1988. In Counts II and III Werblo alleged that the School Board breached her contract and violated Indiana's Tenured Teacher Act, Indiana Code sections 20-6.1-4-10, 11 and 12. Count II requested the trial court to issue a mandate requiring the School Board to reinstate Werblo and to pay Werblo back pay. Count III sought Fifty Thousand Dollars ($50,000) in damages.

On November 20, 1985, the School Board filed a Motion for Summary Judgment. The School Board argued that Werblo's Count I should be dismissed for failure to provide notice pursuant to Indiana's Tort Claim Act, Indiana Code section 34-4-16.5-1 et seq. (hereinafter ITCA). The School Board argued also that summary judgment was appropriate under Counts II and III because the School Board complied with the Tenured Teachers Act and because substantial evidence of probative value existed to support the termination. Thereafter, the trial court requested and the School Board provided a transcript of the termination hearing. Werblo filed a motion to strike the transcript and argued that the School Board altered the transcript. The trial court denied Werblo's motion to strike and granted the School Board's Motion for Summary Judgment. The trial court dismissed Count I of Werblo's complaint for failure to comply with the ITCA, found that no material issues of fact existed as to Count II and III of Werblo's complaint, and held that the School Board was entitled to judgment as a matter of law. Werblo appeals these rulings.

ISSUES

While Werblo presents three (3) issues for review, two (2) issues are dispositive:

(1) Whether the trial court erred by dismissing Werblo's Count I for failure to comply with the ITCA?

(2) Whether the trial court erred by finding that the School Board complied with the Tenured Teachers Act and was entitled to summary judgment on Counts II and III of Werblo's complaint?

DISCUSSION AND DECISION
Issue One

Werblo argues first that the trial court improperly granted the School Board's Motion for Summary Judgment based upon failure to provide notice under the ITCA and erred by dismissing Count I of her complaint which sought reinstatement, back pay, damages, and attorney fees under 42 U.S.C. Secs. 1983 and 1988. In reviewing the grant or denial of summary judgment this court applies the same standard as the trial court. Brenneman Mechanical and Elec., Inc. v. First National Bank of Logansport (1986), Ind.App., 495 N.E.2d 233, 240, trans. denied; First Savings and Loan Ass'n of Central Indiana v. Treaster (1986), Ind.App., 490 N.E.2d 1149, 1151 trans. denied. A trial court may grant summary judgment only when no issue of material fact exists and when the movant is entitled to judgment as a matter of law. Indiana Rules of Procedure, Trial Rule 56(C); Brenneman, at 240; Treaster, at 1151. The movant bears the burden of persuasion and must establish the propriety of summary judgment. Popp v. Hardy (1987), Ind.App., 508 N.E.2d 1282, 1284; Kidd v. Davis (1985), Ind.App., 485 N.E.2d 156, 158. The summary judgment standard compels the trial and reviewing courts to view the facts and the inferences to be drawn therefrom in a light that is most favorable to the non-movant. Popp, at 1284; Kidd, at 158.

Under the ITCA a party bringing a suit or claim in tort must provide notice within 180 days of the occurrence of a loss to the governmental agency, the governmental actors involved, and in some cases the Indiana Political Subdivision Risk Management Commission. Ind.Code Sec. 34-4-16.5-1 et seq. Notice is a procedural condition precedent to suit, but the 180 day limitation does not equate to a statute of limitations for the party's suit. Indiana Dept. of Pub. Welfare v. Clark (1985), Ind.App., 478 N.E.2d 699, 701, cert. denied (1986), 476 U.S. 1170, 106 S.Ct. 2893, 90 L.Ed.2d 980. The purpose of notice under the ITCA is to inform governmental entities of the circumstances surrounding the alleged loss so that an investigation can be made to determine if wrongful conduct and liability exists. Orlowski v. City of South Bend (1985), Ind.App., 482 N.E.2d 1380, 1382. Failure to file the required notice within 180 days acts as a bar to claims or suits against those entitled to receive notice. Clark, at 702.

In the present case, Werblo argues that notice was not required because Count I of her complaint, which was brought under Sec. 1983, did not arise in tort but rather arose out of her employment contract. Werblo argues that the ITCA does not apply to all Sec. 1983 suits against the government and suggests that each case has to be analyzed to determine the nature of the cause of action. Werblo suggests further that Sec. 1983 claims alleging constitutional and civil rights deprivations which arise out of an employer-employee relationship should not be subjected to the ITCA's notice provisions, and relies on City of Mishawaka v. Squadroni (1985), Ind.App., 486 N.E.2d 1088, trans. denied; Bernhardt v. State (1985), Ind.App., ...

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